DICKERSON: Trump's judicial choices will resonate long after his presidency

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May 30, 2017 at 3:00 PM

The men who wrote the U.S. Constitution never met Donald Trump. But he was precisely the sort of president they had in mind when they invested the other two branches of government with the authority to corral a commander-in-chief with pretensions to autocratic power.

And if you believe, as the framers did, that a vigilant judiciary is a vital insurance policy on the survival of our democratic republic, then it behooves you to pay close attention to the sort of men and women with whom the 45th president has begun to fill more than 120 vacancies in the federal court system.

The good news for champions of a robust judiciary is that Trump is not terribly interested in the judicial process, and that he has largely delegated the business of identifying and vetting candidates for judicial office to people who are.

The bad news is that some of those people are less interested in promoting the rule of law than with greasing the judicial skids for the same special interests that already wield outsize influence in the other two branches of government.

And because life-tenured judges tend to serve for decades after the presidents who nominate them are retired or deceased — well, let's just say Trump's judicial choices will resonate long after his Twitter account has gone silent.

Lansing's vertical blur

Trump took office with the opportunity to fill an unusually large number of seats on the federal bench. Now, after hustling to fill the vacancy created by Justice Antonin Scalia's death (and prolonged by the Senate Majority Leader Mitch McConnell's unprincipled refusal to schedule confirmation hearings for President Barack Obama's nominee to replace Scalia), the White House is turning its attention to 129 lower court openings. If his nominees win confirmation, Trump could end his first year in office with his appointees holding one of every seven seats among the 890 authorized by Congress.

Michigan will be among the first states to feel the impact of Trump's judicial imprimatur. Half of the first six candidates Trump nominated to the U.S. Court of Appeals are poised to fill vacancies in the 6th Circuit, which hears appeals from federal cases tried in Michigan, and three other states.

Justice Joan Larsen, who has sat on the Michigan Supreme Court for less than two years, was tapped to fill a vacancy created by the semi-retirement of Court of Appeals Judge David McKeague. Louisville lawyer John Bush and U.S. District Judge Amul Thapar, another Kentuckian, were nominated for two other seats on the Cincinnati-based appellate court.

If confirmed, the new additions will turn the Republicans' precarious 7-6 majority on the 6th Circuit into a decisive, and more durable 10-6 advantage.

But Larsen's confirmation may prove especially consequential. She is one of the 21 individuals Candidate Trump listed last summer as candidates for future elevation to the U.S. Supreme Court. Experience on the second-highest court in the land would only burnish her already-formidable résumé, which includes stints as a clerk to Scalia, as a deputy attorney general in the U.S. Justice Department under President George W. Bush, and as a University of Michigan law professor.

Scalia redux?

Larsen, 48, is unabashed in expressing her personal affection and intellectual admiration for Scalia, but it is hard to know how closely her jurisprudence would track her mentor's. Like Scalia, she identifies (to use a verb the late justice never would) as a textualist. This is a fancy way of saying that she has less interest in the history of the laws she is called upon to interpret — or the motives of the legislators who adopted them — than in the words of the statutes themselves.

Depending on your outlook, this is either a reassuringly restrained or myopically constricted way to go about the business of appellate adjudication.

A strict textualist, for instance, might be satisfied that Trump's latest executive order barring travelers from six predominantly Muslim countries is constitutional because it includes no specific reference to religion. But most judges have been more skeptical, reasoning that courts required to protect the First Amendment's guarantee of religious liberty must take into account Candidate Trump's pledges to ban all Muslims.

Still, Larsen's limited record on the bench — she has neither authored a controversial majority opinion nor cast the decisive vote in any noteworthy case during her 19-month state Supreme Court tenure — makes it difficult to predict how she would rule in any particular case. But if it is hard to imagine her spearheading a judicial resistance campaign to rein in the impulsive president; she seems equally unlikely to sit still for an aggressive expansion of executive branch authority.

What we know for sure is that many legal and academic colleagues who do not share Larsen's political preferences profess profound respect for her personal integrity and intellectual rigor. Democratic Justice Bridget Mary McCormack was among those who championed Larsen's appointment by Republican Gov. Rick Snyder. This week, hours after her 6th Circuit nomination became public, nearly three dozen members of the U-M law faculty representing a broad to swath of the ideological spectrum dispatched a letter urging Michigan's two Democratic senators to confirm her.

Protecting the courts

The druthers of Sen. Debbie Stabenow and Gary Peters may be academic in a U.S. Senate whose Republican majority is likely to assure the confirmation of most of Trump's nominees. This is especially the case if, like the 21 Supreme Court prospects unveiled last summer, future nominees come with the blessings of the conservative Federalist Society and Heritage Society.

But even if they acquire the wherewithal to block judicial nominations later in Trump's tenure, Democrats should hesitate to oppose nominees of ability and integrity simply because they find their on philosophical grounds alone. To do so would be to further weaken a vital firewall that is already under siege by Trump his populist surrogates.

Trump has maintained a jaundiced view of the legal profession in general, and the courts in particular, throughout his career as a deal-maker. In the Oval Office, as in his business dealings, he has experienced the courts more often as an obstacle to his commercial ambitions than as a vital guarantor of his legal rights.

Since becoming president, Trump used his lifelong resentment of lawyers to fuel a sustained attack on the legitimacy of the judiciary itself. Frustrated in a series of courtroom skirmishes testing the limits of his executive power, he is rarely satisfied to impugn his opponents' legal reasoning. As in other encounters, his reflex is to challenge the integrity, patriotism and even the legal authority of any judge who rules against him. He has encouraged a legislative initiative to break up the 9th U.S. Circuit Court of Appeals (although it's unclear how such a change would make the 9th Circuit more conservative).

Liberals can't risk abetting this assault on the courts' legitimacy by making judicial nominations just one more front in the partisan war between Democrats and Republicans. The GOP's decades-long campaign to push the federal judiciary in a more conservative and corporation-friendly direction may be problematic, but it simply doesn't pose as serious a threat to the rule of law as Trump's all-out assault on the legitimacy of judicial review. With an aggressive and self-aggrandizing commander-in-chief at large in the White House, their primary focus must be on defending the judiciary's constitutional authority, not in blocking conservative nominees by any means necessary.

The transparent attempt to take the wind out of the FBI's investigation into the administration's ties to Russia is only the latest signal that Trump's grandiose conception of presidential prerogative is on a collision course with the constitutional reality.

If and when that clash comes, the nation can't afford any confusion about which branch's job it is to say what the law is.

You may contact Brian Dickerson at the Detroit Free Press at bdickerson@freepress.com.